It may be tempting to regard the Supreme Court’s deadlocked decision last week in United States v. Texas, the Republican lawsuit challenging the Obama administration’s 2014 immigration initiatives, as something of a “non-decision” or “punt.” The Court’s one-line opinion—which, by convention, affirms the lower court’s judgment but has no further precedential effect—does not address any of the substantive issues presented in the case. Nor does the opinion itself disclose how any of the justices voted on any of the questions before them, although there seems little mystery as to which justices were likely on each side of the decision. And especially since the case came to the Supreme Court at the preliminary injunction stage, the litigation may be far from over—making it even more plausible to understand the Court’s decision as one that defers ultimate resolution of those issues.

Please join us for the 3rd Annual South Asian Legal Academics (SALA) Workshop. The mission of SALA is to create and sustain a supportive space within which South Asian legal scholars and teachers can learn and grow to achieve their maximum potential.

When the justices of the Supreme Court deliberate over the issues in United States v. Texas, the Republican lawsuit seeking to invalidate the Obama administration’s immigration initiatives, they would do well to reflect upon just how far the arguments that the plaintiffs have presented to them diverge from those that were presented to Judge Andrew Hanen in the Southern District of Texas when the lawsuit was originally filed.

When the Supreme Court considers what it hears this week in United States v. Texas—the Republican lawsuit challenging the Obama administration’s immigration initiatives—the justices should start by getting the basic facts right, which is something that both the administration’s political opponents and lower court judges have scrupulously failed to do.

In an essay published earlier this week, Prof. Michael Kagan expresses concern that “one aspect” of the Obama administration’s executive actions on immigration might be vulnerable when the Supreme Court adjudicates United States v. Texas later this year. In particular, Kagan worries that the plaintiffs might “have a valid point” when they assert that the administration’s initiatives—Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals—improperly purport “to make lawful something that Congress has made unlawful.” Kagan’s concern rests principally—and possibly in its entirety—on a stray line in the memorandum issued by Homeland Security Secretary Jeh Johnson to establish DAPA and expand DACA, which states that “deferred action … means that, for a specified period of time, an individual is permitted to be lawfully present in the United States” (emphasis added).

As the scale of the expansive and fragmented immigration enforcement regime has grown to such enormous levels — making the interrelated challenges of ensuring consistent execution of the law and fidelity to enforcement priorities more formidable — the need for effective mechanisms to supervise the discretion exercised by rank-and-file officials has only grown more important. But even as it purports to respect the government’s enforcement priorities, the logic of Judge Hanen’s ruling would largely disable policymaking officials from implementing such mechanisms, requiring them instead to let the vagaries of the bureaucracy reign supreme. The decision therefore not only inhibits the agency’s ability to establish enforcement priorities and manage its scarce resources, but also fails to acknowledge the importance of rule of law values such as consistency, transparency, accountability, and nonarbitrariness in the execution of the immigration laws.

Abstract:
In recent years, immigration enforcement levels have soared, yielding a widely noted increase in the number of noncitizens removed from the United States. Less visible, however, has been an attendant sea change in the underlying nature of immigration governance itself, hastened by new surveillance and dataveillance technologies. Like many other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information for immigration control and other purposes. This information is aggregated and stored by government agencies for long retention periods in networks of interoperable databases and shared among a variety of public and private actors, both inside and outside the United States, with little transparency, oversight, or accountability.